Sunday, 19 December 2010

The holiday season is upon us, and Joshua (not his real name) is delighted to be spending this special time with his American partner, Thomas (also not his real name), as a green card holder. Although Joshua has lived in the U.S. for over eight years and had an excellent job including health insurance benefits and an employer willing to sponsor him for permanent residence, when he began the immigration application process several years ago, he learned that he was HIV-positive.

Devastating as it was to come to terms with the illness, Joshua also learned that he could not move forward with the green card application without risking deportation from the U.S. Instead Joshua resigned himself to a stressful limbo - lawfully residing in the U.S. with a work visa but unable to seek permanent residence or travel outside the U.S. because he was considered “inadmissible” as a person living with HIV.

January 4, 2011 will mark the anniversary of the end of the HIV ban on travel and immigration. Finally, after more than two decades, the United States changed its laws to stop preventing foreign nationals with HIV from traveling to the U.S. or obtaining permanent residence here.

Joshua’s story was all too familiar to the legal staff at Immigration Equality. Since the U.S. does not allow American citizens to sponsor their same-sex partners for immigration benefits, our best advice to many binational couples is to seek permanent status here through employment.

Gay foreign nationals living with HIV were subject to the double discrimination of being unable to qualify for an HIV waiver without a “qualifying relative.” An American partner of the same sex was not considered a “qualifying relative,” regardless of how long the couple had been together or how close their relationship is.

The ban is over and, thankfully, we can now tell foreign nationals living with HIV that they can visit the U.S. without being questioned about their HIV status. Further, we can tell those who wish to apply for lawful permanent residence that they will no longer be subject to an HIV test as part of their medical examination.

For many hundreds of foreign nationals, the lifting of the ban has been life-changing. For others, the vestiges of the ban remain.

Foreign nationals living with HIV who previously applied for benefits and revealed their HIV status continue to face added scrutiny of their applications for lawful permanent residence as U.S. Citizen and Immigration Services determines whether the applicant is “likely to become a public charge.”

Under the HIV ban, the biggest obstacle for permanent residence, even for those applicants who had a “qualifying relative” and could seek a waiver of the HIV ground of inadmissibility, was a requirement by U.S. consulates abroad that the individual demonstrate U.S. health insurance coverage before he or she would be allowed to enter the U.S. Even with the end of the ban and the end of the waiver requirement, we have still seen individual applicants forced to meet this impossible requirement, and are currently working with a pro bono partner on behalf of a Chinese teenager who is seeking to be reunited with his green card-holding mother in the U.S.

Other individuals report questions and confusion about the remnants of the ban.

Must HIV-positive green card applicants disclose their status as part of the medical exam even if they’re not tested? Should an applicant report that she has a “sexually transmitted disease” even if she was infected perinatally?

While the immigration office has changed its domestic medical examination form, the form used for medical exams abroad, DS-2053, still lists HIV as a “communicable disease of public health significance.” When will this be updated?

Hopefully the issues that remain will be resolved soon. A ban that took two decades to institutionalize apparently takes more than a few months to completely dismantle. Even so, nothing could be more gratifying than hearing from people like Joshua that within months of the end of the ban, he received his green card; after years of living in the United States, he can finally call this country home.